The Uniform Code of Military Justice (UCMJ) was created in 1950 with the intent of allowing commanders to ensure good order and discipline among the ranks of a primarily compulsory military. Today the military is comprised of a fully volunteer force of men and women who freely choose to serve, but its once appropriate legal system has since evolved into a routinely sinister tool for morally bankrupt, self-serving commanders and military prosecutors to build their résumés and transition to a lucrative civilian legal career touting their having done “justice”, which is really a rouse secured under the guise of legitimacy.
As far back as 2002, before the War on Terror had fully ramped up, a special report from the U.S. News & World Report referred to it as a system that “was designed to enforce discipline, not justice.” That is accurate. The overarching intent behind the UCMJ was to maintain good order and discipline through swift justice in field or expeditionary settings. There was no intent for the UCMJ to evolve into an entire body of constitutional jurisprudence.
Assuredly, no one can seriously argue that the UCMJ is worse than the preceding Articles of War, but the military is still using an antiquated disciplinary system from the Jim Crow era that is rife with unlawful command influence (UCI). Retired General Raymond Odierno once stated that UCI, which takes advantage of the fact that the convening authority selects a jury that reports to him or her and are directly or indirectly rated by him or her, “continues to be an insidious problem in our military justice system and is of grave concern to me”. The same U.S. News report from 2002 stated that UCI is the “mortal enemy of military justice”.
Military commanders are responsible for maintaining discipline in their unit. Bestowed absolute power over their subordinates, by the Uniform Code of Military Justice (UCMJ), they have the final say during criminal cases, even if they have no legal experience.
By the mid-twentieth century, Americans who served in the armed forces protested against an unfair military legal system. As a result, the Uniform Code of Military Justice (UCMJ) was established in 1950.
Over the next 30 years, changes were made in the UCMJ to improve public perception and legitimize the legal process. Although these changes helped secure the rights of the accused, unethical and illegal actions by military leaders, prosecutors, and investigators persist. If the UCMJ is intended to protect the rights of accused servicemembers, why do the men and women who investigate, charge, and persecute our nation’s warriors continue to violate rules to win cases?
Therefore, a comprehensive review and investigation of the military legal system and UCMJ must be conducted to stop criminal and unethical behavior to ensure the protection of our servicemembers’ constitutional rights.
Proper conduct on the battlefield is nothing new in American culture. The United States takes pride in winning wars with honor. Early in America’s history, although there were no legal guidelines, the U.S. military handled criminal behavior to maintain such honor. As warfare changed, so did the military justice system. Armed forces began traveling great distances to fight on foreign soil, and leaders needed a self-sufficient judicial system. Initially, investigating and trying servicemembers was elementary. Discipline was a primary responsibility for commanders, and the military justice system was a tool that leaders could use to enforce authority over subordinates. Prior to the UCMJ, a senior officer from the unit, typically the commanding or executive officer, served as the judge, and two lower-ranking officers from separate units were selected to act as prosecutor and defense counsel. Unfortunately for those accused of crimes, none of the individuals chosen to investigate, charge, and try their case possessed legal knowledge. According to the Harvard Law Review, “the commander historically had virtually unchecked control over military justice.”
During WWII, harsh military justice brought about resentment from troops rather than a reinforcement of discipline. For any criminal justice system to function properly, legitimacy must be maintained. To mitigate negative perception, the U.S. Congress officially adopted the UCMJ in 1951 as a means, “to strike a balance between the individual rights of servicemembers and fairness, on the one hand, and the interest in maintaining discipline and command authority, on the other.”
Problems persisted under the UCMJ until the Supreme Court intervened during the Vietnam War era, writing, “courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.” The Military Justice Act of 1968 improved the process by instituting the placement of a military judge to preside over federal level offenses as well as creating a formal appeals process. Another significant change took place in the early 1980s when independent commands responsible for the oversight of prosecutors and defense counsel were created. Changes continued in the UCMJ until 1994 to ensure an essential feature of an effective criminal justice system — legitimacy.
The UCMJ must be followed by all servicemembers. If violated, commanders use their discretion to determine the severity of punishment. Multiple forms of disciplinary action can be used. Lower level offenses are typically handled by minor administrative measures such as verbal or written counseling, a non-punitive letter of caution or commander authorized extra military instruction. Mid-level offenses may result in more severe paper-work or non-judicial punishment (NJP). Such penalties remain on military service records but do not necessarily end one’s career. For more severe offenses, commanders can choose administrative separation from the military or court-martial. There are three levels of a court-martial; summary, special, and general. To better understand these levels, a general court-martial is reserved for federal crimes.
Unlike civilian law, in which a line prosecutor selects the defendant and determines whether or not to pursue charges, a senior military commander assumes the role of convening authority makes those determinations. Since the convening authority has no legal experience or expertise, they rely on information from investigators, prosecutors assigned to the case, and the commands staff judge advocate (SJA) who advised the commander on legal matters.
UCMJ structure gives a great deal of power to the convening authority, including the final say on legal matters normally decided by legal experts in civilian law. Examples include referring charges to a general court-martial despite recommendations from a judge to dismiss them after an article 32 hearing (similar to a grand jury), selecting the panel of jurors, and approving or denying defense witness requests. Additionally, and not often seen, are second and third-order effects. Defendants may face pre-trial confinement, losing their security clearance, and being denied specific special pays. The convening authority makes these determinations.
Notable war crimes attorney John Maher says, “I think the biggest issue in the UCMJ right now is there’s no provision to discipline prosecutors for failing to turn over evidence. And to the extent there is, it’s not enforced. And to me, that needs to be heightened. In order for the military justice system to be in keeping with American constitutional law, state courts, as well as federal courts, there has to be some sort of consequence for prosecutors to either knowingly or even negligently sit on evidence that tends to exonerate a man or a woman. And secondly, defense counsel can only do so much. Defense counsel in the military and active duty, if you don’t have civilian counsel, you can have a young captain who is probably 25, 26, who doesn’t necessarily know as much yet because their career is still developing.”
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